The Legal Vacuum in AI & CGI Advertising: Challenges and Controversies

Artificial intelligence (AI) and computer-generated imagery (CGI) have revolutionized the advertising industry, offering unprecedented creative possibilities. However, these innovations have also exposed significant legal grey areas, particularly when it comes to using cultural heritage sites and the likenesses of public figures. The controversy surrounding HBO's "House of the Dragon" in Mexico is just one example of a growing list of legal challenges that advertisers face when using AI and CGI.

The HBO Controversy: A Case Study

HBO recently found itself in hot water in Mexico after using footage of the historic Castillo de Chapultepec in a promotional stunt for "House of the Dragon" without obtaining the necessary permissions. The Instituto Nacional de Antropología e Historia (INAH), responsible for the country's national monuments, announced that it would pursue legal action against HBO. This incident underscores the urgent need for clear regulations on using AI and CGI in advertising.

Mexican law, specifically the Federal Law for the Protection of Cultural Heritage of Indigenous and Afro-Mexican Peoples and Communities, requires prior authorization for any commercial use of cultural heritage elements. However, this law does not explicitly address the use of digital tools like AI and CGI, leaving a legal vacuum that can lead to misunderstandings and potential legal disputes.

AI in Advertising: The Broader Picture

The HBO case is far from isolated. Globally, the use of AI in advertising has sparked numerous controversies and legal challenges. For example:

• Selena Gomez: The actress was digitally inserted into the Met Gala despite not attending, raising questions about consent and the use of digital likenesses. This practice not only misleads audiences but also violates the rights of the individuals involved.
• Scarlett Johansson: OpenAI used a voice actress with a very similar tone to Johansson's voice (after she rejected a request from the company) , leading to a public outcry and legal threats. This incident highlights the potential for misuse of audio by AI developers.
• Instagram's AI Disclosures: In an attempt to promote transparency, Instagram now labels images generated by AI. While this is a step in the right direction, it does not address the deeper issues of consent and intellectual property.

Source: Medium.com

Legal Frameworks and the Need for Regulation

The legal frameworks governing the use of AI and CGI in advertising are currently inadequate. Many countries have laws protecting cultural heritage and intellectual property, but these laws often do not explicitly cover digital tools. This gap creates significant challenges for advertisers and the entities tasked with protecting cultural and individual rights.

United States: The use of AI in advertising has also raised legal questions in the U.S. For instance, AI's unauthorized use of celebrity likenesses and voices has led to legal disputes and calls for stricter regulations. The Lanham Act and state right of publicity laws provide some protection, but they are not always sufficient to address the complexities introduced by AI.

Mexico: The Federal Law for the Protection of Cultural Heritage mandates prior authorization for the commercial use of cultural elements but does not explicitly mention AI or CGI. This omission has led to ambiguities in cases like the HBO controversy.

Argentina: Similar to Mexico, Argentina requires compliance with regulations to protect cultural heritage. Netflix's projection of a giant condom on the most iconic monument of the city sparked controversy, though it was confirmed that they had obtained the necessary permissions. This incident illustrates the delicate balance between creative advertising and respect for cultural monuments.

The Ethical Considerations

Beyond legal implications, the use of AI in advertising raises significant ethical questions. The manipulation of images and voices can deceive audiences and undermine trust in media. Moreover, the unauthorized use of personal likenesses infringes on individual privacy and autonomy.

Transparency: Advertisers should be transparent about using AI in their campaigns. As seen on Instagram, clear labeling helps inform consumers and maintain trust.

Consent: Obtaining explicit consent from individuals whose likenesses or voices are used by AI is crucial. This respect for personal rights should be a fundamental principle in all advertising practices.

Cultural Sensitivity: When using cultural heritage sites, advertisers must consider the significance of these locations and seek the appropriate permissions. Disrespecting cultural sites violates laws and damages the advertiser's reputation.

Moving Forward: Recommendations for Advertisers

To navigate the legal and ethical challenges of using AI in advertising, companies should adopt the following best practices:

1. Legal Compliance: Ensure compliance with all relevant laws and regulations, including obtaining necessary permissions for using cultural heritage sites and individual likenesses.
2. Transparency: Clearly disclose the use of AI in advertising materials to maintain consumer trust and transparency.
3. Ethical Standards: Develop and adhere to standards that respect individual rights and cultural heritage.
4. Collaboration with Authorities: Work closely with cultural and legal authorities to ensure that advertising practices do not violate cultural or legal norms.
5. Public Education: Educate the public about the use of AI in advertising to promote understanding and acceptance of these technologies.

Key points to remember

Using AI and CGI in advertising offers exciting creative opportunities but also presents significant legal and ethical challenges. The controversy surrounding HBO's "House of the Dragon" in Mexico highlights the urgent need for clearer regulations in the industry. By adopting transparent, respectful, and legally compliant practices, advertisers can harness the power of AI while protecting cultural heritage and individual rights.

As technology continues to evolve, so must our legal and ethical frameworks. Only through proactive measures and responsible practices can we ensure a future where AI enhances our creative capabilities without compromising our cultural and ethical values.

*Content developed with the support of ChatGPT, an AI tool by OpenAI.